The Court of Appeal has brought relief to those within the soft fruit and horticulture industries in the UK and particularly to those farming in AONBs or similarly designated sites.
The case concerned the decision of Herefordshire Council to grant planning permission for polytunnel development relating to soft fruit production on existing farmland in an AONB. The council found that this development could not be described as "projects for the use of uncultivated land or seminatural areas for intensive agricultural purposes" within the definition of EIA Development under the EIA Regulations 1999. An action group challenged this decision in the High Court where it was held that the council erred in law in failing to require an EIA. The High Court decision suggested that cultivated land could be treated as a "semi-natural area" simply because it was within a designated area such as an AONB and thus was subject to the burden of the EIA regime.
However, the Court of Appeal overturned this ruling. In doing so, Lord Justice Richards stated that a court must not take on the role of a decision maker themselves and the council were best placed to judge here whether the cultivated land concerned could properly be described as a semi-natural area. The court's role should be merely supervisory to check that the council had correctly understood the meaning of the expression "semi-natural area" and to ensure the council's conclusion was rational.
Of key importance to the industry is that the Court of Appeal recognised that whilst the application site being within an AONB was a relevant consideration, it did not automatically make it a "semi natural area"; other factors should also be considered including the extent to which the land is already cultivated.